Michael Savage Takedown Letter Might Violate 512(f)–Brave New Media v. Weiner

By Eric Goldman

Brave New Films 501(C)(4) v. Weiner, 2009 WL 1011712 (N.D. Cal. April 15, 2009). The Justia page.

In October 2007, radio personality Michael Savage (aka Weiner–hence the case caption) went on an anti-Muslim tirade on his radio show. This has become the source of at least 2 lawsuits.

The first lawsuit was brought by Savage against the Council for American-Islamic Relations, which posted 4 minutes of excerpts to its website as part of critical remarks about Savage. I previously mentioned that lawsuit here. In July 2008, the judge tossed Savage’s lawsuit based on CAIR’s fair use defense.

This ruling relates to a different critical video. Brave New Films created an 83 second video entitled “Michael Savage Hates Muslims,” which included about 1 minute of audio from Savage’s tirade (all of which had been in CAIR’s post), some additional critical commentary and a promotion for the related site nosavage.com. In January 2008, BNF posted the video to YouTube. In September 2008, Savage’s syndicator, Original Talk Radio Network, sent a “driftnet” takedown letter to YouTube covering 259 videos on YouTube, including BNF’s “Michael Savage Hates Muslim” video. YouTube disabled both the video and BNF’s YouTube channel. BNF filed a 512(g) counternotification and initiated a lawsuit against Savage and OTRN, seeking a declaratory judgment and alleging a 17 USC 512(f) violation that the takedown letter misrepresented the infringing nature of the video. This ruling deals with Savage’s motion to dismiss the 512(f) claim.

Savage first argued that OTRN, not him, sent the letter, so he should not be liable for any misrepresentations in the letter. In fact, Savage has at least some copyright registrations to his show (including the episode containing his tirade) in his name only, so it is unclear what, if any, copyright interests OTRN could be asserting on its own behalf. However, the letter contained (consistent with 512(c)(3) notices generally) a declaration under penalty of perjury that OTRN was acting on behalf of the copyright owner. Indeed, by definition, every proper 512(c)(3) takedown notice creates apparent authority between the sender and the copyright owner (if they are different). This creates a possible conundrum. If OTRN was, in fact, a rogue independent contractor of Savage, it’s a little unfair to Savage to hold him accountable for rogue acts. On the other hand, the court can allocate the financial responsibility between the principal and rogue agent.

Savage’s second argument is that the takedown letter was not a 512(c)(3) notice and therefore did not satisfy 512(f)’s statutory requirements. For an analogous case (not cited), see the Dudnikov case. The court rejects the argument, saying that this takedown letter was substantially equivalent to a 512(c)(3) notice and therefore governed by 512(f).

Finally, Savage argued that the takedown letter was protected by statutory pre-litigation privileges. The court rejects this too, saying that the statutory privileges don’t apply.

As a result, Savage remains potentially on the hook for a 512(f) violation. It will be interesting to see what the court does with the Lenz case, which seems relevant. If CAIR’s use of the material had already been legally adjudicated as a fair use before OTRN sent the driftnet takedown letter for a clip containing a small fraction of the same material, there could be a good argument that OTRN did not adequately consider the fair use defense as required by Lenz.

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